Personal Attendant Overtime Exemption in California: A Thing of the Past

New legislation in California means good news for employees (maybe) and bad news for domestic employers (for sure):

As of January 1, 2014, companies or individuals who hire persons to provide personal attendant care will need to provide overtime to those employees who work over 9 hours a day and 45 hours in a week. The bill does not change the fact that personal attendants are still exempt from receiving meal or rest breaks under the new legislation.

AB 241, sponsored by Tom Ammiano (D-SF), means that most employers will need to pay overtime, thus driving up the costs for these agencies that generally are not highly lucrative to start. Thus, the claim that this is bad news for employers. It's good news for employees, only maybe, because I predict (seeing how my clients are scrambling to comply with it) that many companies will go out of business as a result of the legislation. Families that use home care workers will likely cut back on hours to comply with the legislation. The bill does exempt workers who are contracted through a regional or state agency either directly or via their employer. For example, if a private agency is paid by the local regional center for the care they provide, they will not be impacted. However, keep reading to see that next year federal regulations WILL impact these groups as well. Also, it's important to note that personal attendants, nannies, home care workers, etc. who spend more than 20% of their time doing things other than direct care (such as housekeeping, errands, etc.) are not exempt from overtime and never have been. Like most pieces of legislation seemingly favoring employees, AB 241's proponents claim it as a win for employees because it means that they will get more money for the hours they work. However, like most legislation and legal decisions, the arguments about it rarely address the deeper issues it creates: In this case, those issues are created by the many businesses that will need to close down as a result, meaning less work for employees overall.

What Are Personal Attendants?

Personal attendants include any persons employed by a private householder or by any third-party employer recognized in the healthcare industry to work in a private household to supervise, feed, or dress a child or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision. Personal attendants are often used to care for children (think nanny), older persons (think certified nursing assistant), and those with development disabilities (often called home health care workers). Generally, direct care workers are workers who provide home care services, such as certified nursing assistants, home health aides, personal care aides, caregivers, and companions. Their exemptions under both California and federal law are often hotly debated. Of course, the federal employment agency, the U.S. Labor Department, has also hopped on the bandwagon. It issued a press release this month indicating that home health care workers won't be exempted from overtime starting January 1, 2015. This will apply to any agency, whether government or private, that places home health care workers in residences or living facilities. It will not apply to private families who use personal attendants. However, if those families reside in California, they are paying OT anyway via AB 241. As always, feel free to email or call us with any questions on the legislation.